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ELCPartially AllowedNot stated in judgment (notice of motion dated 8th November 2025)

Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)

Environment and Land Court
16 February 2026
2,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Filing an appeal does not stop an eviction in Kenya — you must obtain and prove an actual stay of execution order, or the judgment holder can evict you.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 8th November 2025 by Margaret Wesonga, the defendant in a concluded adverse possession suit. The plaintiffs had sued claiming title to LR No. Bugumbe/Mabera/211 by adverse possession; their suit was dismissed with costs after the court found the claim unproved on a balance of probabilities, and they were ordered to vacate. The applicant sought an eviction order to be executed by Ekemwanya Auctioneers with the assistance of the OCS Isibania Police Station, in compliance with Sections 152C, D, E & G of the Land Act and the Land Act Regulations (2017), plus auctioneer's charges and costs. The respondents opposed, deponing that they had appealed to the Court of Appeal in Kisumu and filed a stay of execution application yet to be heard, and that eviction would defeat their appeal. The court found the decree dated 27th August 2025 unchallenged by any stay order. The respondents did not annex the alleged stay application, and the annexed Court of Appeal directions could relate to any application. Applying Section 107(1) of the Evidence Act, the court held they failed to prove the existence of a stay application or a grant of stay. Relying on Order 42 Rule 6(1) of the Civil Procedure Rules and the Macharia decision, the court reaffirmed that an appeal does not automatically stay execution and that a successful party is entitled to the fruits of judgment. The application was allowed and eviction orders issued as prayed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents should be evicted from land parcel no LR No. Bugumbe/Mabera/211
  2. 2.The question of costs of the application

Key legal issues

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01

Whether eviction of the respondents could issue absent a stay of execution of the decree

Holding

Yes. No stay of execution had been granted by this court or the Court of Appeal, and an appeal does not operate as an automatic stay, so the applicant was entitled to enjoy the fruits of her judgment.

Reasoning

The decree dated 27th August 2025 directed the respondents to vacate within 30 days and they had not done so. Although they claimed to have filed a stay application in the Court of Appeal, they did not annex it, and the annexed directions could relate to any application. Under Section 107(1) of the Evidence Act they had to prove the existence of the application and the grant of a stay; they did not. The court therefore allowed the eviction application.

p. 4
02

Entitlement of a successful party to the fruits of judgment

Holding

A successful party is ordinarily entitled to the fruits of the judgment, and the court should not be obsessed with protecting an intending appellant at the expense of the successful party.

Reasoning

The court adopted the decision in Macharia t/a Macharia & Co Advocates v East African Standard, which holds that the ordinary principle is that a successful party is entitled to the fruits of the judgment, and that courts handling stay applications must fix their sight on the overriding objective of doing justice and preventing abuse of court process.

p. 4

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; a decree stands executable unless a stay is ordered
  • A party asserting that a stay application exists and a stay has been granted bears the burden of proving those facts

Court orders

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  1. 1.An order of eviction issued against the Plaintiffs/Respondents, their servants, agents or anyone acting under them, from LR No. Bugumbe/Mabera/211, to be carried out by M/S Ekemwanya Auctioneers with assistance of the OCS Isibania Police Station providing security and assistance in execution
  2. 2.The eviction to be carried out under strict adherence and compliance with Section 152 C, D, E & G of the Land Act, Cap 280 and the Land Act Regulations (2017)
  3. 3.The Plaintiffs/Respondents to pay the Auctioneer's charges and all subsequent or incidental costs incurred during the eviction exercise, together with costs incidental to the application
  4. 4.The costs of the application to be borne by the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
null (originating suit decided by this court; respondents have filed an appeal in the Court of Appeal, Kisumu, but this application is not an appeal)
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21; Rule 9 of the Auctioneers Rules 2009; Sections 152C, D & G of the Land Act, Cap 280 and the Land Act Regulations (2017); Articles 10, 21, 22, 28, 40, 43, 47 & 50 of the Constitution of Kenya, 2010

Relief refused

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Stay of execution pending appeal sought by respondents

Respondents failed to prove the existence of a stay application or any order of stay of execution by this court or the Court of Appeal

p. 3

Costs

The costs of this application to be borne by the Respondents; the Plaintiffs/Respondents to also pay the Auctioneer's charges and all subsequent or incidental costs incurred during the eviction exercise

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There be and is hereby issued an order of eviction against the Plaintifis/ Respondent, their servants, agents or anyone acting under them or under their authority, in and from the occupation of all that parcel of land known as LR. No. Bugumbe/Mabera/211
p. 4Final orders - eviction order
The plaintifis/Respondents to pay the Auctioneer's charges and all the subsequent or incidental costs incurred during the eviction exercise, together with the cost incidental to this Application.
p. 5Final orders - costs
The costs of this application be borne by the Respondents.
p. 5Costs of the application
This Court does not act on guesswork or conjecture.
p. 3Burden of proof
Thus, where the court has not been furnished with a copy of an order staying execution or at the very least, an application received by the court of appeal seeking the said stay of execution, it has no choice but to allow the applicant to enjoy the fruits of her successful litigation.
p. 4Stay of execution

Issues in the judgment

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minor

The judgment describes the respondents as 'Appellants/Respondent' and 'Plaintifis/Respondent' inconsistently, reflecting the pending appeal; party roles are not fully defined and the respondents' names and the suit number are not stated

minor

Typographical errors throughout ('sufier', 'dificult', 'fiitting') suggesting OCR or drafting errors

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 8th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/862/eng@2026-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.